Justice Stephen Breyer's upcoming retirement from the Supreme Court was reported late Wednesday morning, and by Wednesday night, Fox News and other right-wing outlets already had their narrative: President Joe Biden's new nominee is proof that a white man can't catch a break in the U.S. of A.
Mind you, there is no nominee yet, though potential shortlists have been floated. On the campaign trail, Biden promised to nominate a Black woman for the court, a promise he reiterated from the White House on Thursday. "I've made no decision except one, the person I will nominate will be someone of extraordinary qualifications, character and experience and that person will be the first black woman ever nominated to the United States Supreme Court."
Of the 115 justices that have sat on the Supreme Court, 0 have been Black women, but 107 of them have been white men. Nonetheless, GOP media swiftly circled around the claim that this nominee — whoever they may be — is proof that white men are the real victims of discrimination. One of those white men confirmed to the court — Justice Brett Kavanaugh — now is one of the most powerful people in the country. Still, he was held out as even further proof that white men are the most victimized of all victims.
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"Biden didn't mention the Supreme Court nominee's legal qualifications or judicial philosophy or ability to perform one of the most important jobs in the country. He didn't even tell us she was a nice person. All he said was she's going to be Black and she's going to be female, because to him, that's all that matters," Fox News host Tucker Carlson screeched in one of his typical fascistic rants Wednesday night. He sneeringly suggested George Floyd's sister, Bridget Floyd, is the "obvious choice," because even though she "is not a judge or a lawyer or whatever," Biden supposedly doesn't care about "this law stuff."
The obvious implication of Carlson's rant is there is no such thing as a Black woman who is qualified for this role. This is, unsurprisingly, an easily disproved insinuation. The top name floated from Biden's likely shortlist is Judge Ketanji Brown Jackson, who sits on the D.C. Circuit Court of Appeals — the same court that Kavanaugh was nominated from by Donald Trump and now Attorney General Merrick Garland was nominated for the Supreme Court from by Barack Obama. The other reported top name is California Supreme Court Justice Leondra Kruger. Both of these women, one a Harvard law and one a Yale law graduate, are very much into "this law stuff."
Carlson's rhetoric is hyperbolic, but the more "respectable" right-wing press is playing the same game of trying to disqualify Black women and painting Biden's promise as discrimination against supposedly more qualified white men.
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Ed Whelan of the National Review wrote a piece earlier this month claiming "black women are massively overrepresented among Biden's appellate picks" and that "the big losers (I take some delight in noting) are liberal white males." The New York Times then uncritically echoed Whelan's point:
According to a 2021 profile of the legal profession by the American Bar Association, just 4.7 percent of American lawyers are Black and 37 percent of lawyers are female. The report did not break out Black women in particular, but the implication is that roughly 2 percent of American lawyers are both Black and female.
Never mind, of course, that only eight Black women had served on federal appeals courts prior to Biden taking office — and none before 1975. Black women are nearly 7% of the population and continue to be 0% of the Supreme Court, as has been true literally throughout its history.
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Nevertheless, the idea that white men are being shoved aside so Black women can steal "their" jobs was the theme that carried the day in Republican reactions.
Carrie Severino of the Judicial Crisis Network tweeted that "The Left bullied Justice Breyer into retirement" and Tom Fitton of Judicial Watch echoed the talking point with the claim that "The Left forced Breyer off the Supreme Court." On Fox News, Sean Hannity whined that it was "gender discrimination" for Biden to try to rectify the wild imbalance towards men with a female nominee. Carlson's lengthy tantrum included complaints about the "casual racism of affirmative action" and that "Joe Biden's nominees look nothing like America, not even close."
The bellyaching about the alleged victimization of white men was also the theme of Greg Gutfeld's conniption on Fox News. "Whoever gets nominated, I'm going to say that that person -- be they male or female, or nonbinary -- did something really bad to me," he "joked" in his typical unfunny way. He added sarcastically, "it's going to be 100 percent true and disgusting."
This is an obvious reference to Christine Blasey Ford's accusation of attempted rape against Kavanaugh. On the right, it's hardened into received wisdom that she made it all up in order to hurt him. In reality, of course, her testimony under oath was calm and absolutely no lies were discovered in it — while Kavanaugh lied repeatedly during his testimony in ways that were so obvious that multiple lies were turned into jokes and memes. (For instance, Kavanaugh repeatedly insisted he had never drank to excess, despite emails describing blackout drunken nights and being awarded "Beach Week Ralph Club Biggest Contributor" by his high school classmates.) In addition, Ford's testimony was corroborated by two other women who said they had similar encounters with Kavanaugh in college.
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The attempts to pre-emptively disqualify any Black women became downright baroque on Fox News with one segment in which the supposed "news" anchors ran wild with speculation that Vice President Kamala Harris would be the nominee.
"So this person has to be a woman, she's got to be Black and she has to be younger," Fox News host Harris Faulkner said. "Anyone thinking what I'm thinking? They don't know what to do with Kamala Harris in the White House right now." Trump's former spokesperson Kayleigh McEnany immediately concurred, calling the theory "credible."
What's going on is not mysterious. The hosts know their audience has no knowledge of the multiple highly qualified candidates that are being circulated on media shortlists. Because the audience for Fox News can't name a single qualified Black female candidate, they assume that Biden himself is similarly ignorant — an assumption that the hosts at Fox News are shamelessly feeding. It's all part of the larger narrative insisting that any Black female nominee is inherently unsuitable.
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One way or another, what's clear is that right-wing media sees the upcoming Supreme Court battle as a golden opportunity to advance their already ridiculous narratives about how white men are being oppressed by women and people of color. On Fox News, this narrative has merged neatly with ideas drawn directly from neo-Nazis and other white nationalists. It really doesn't matter who the nominee is, or how qualified they are. Fox News will demonize this person to whip their audiences into a fascistic frenzy.
None of this is to say that Biden should break his promise to nominate a Black woman. Fox News has its narrative built in without even knowing who the nominee is. There is nothing Biden can say or do that will mollify them. Any nominee — even the blandest white guy — would be spun as a secret agent of antifa and Black Lives Matter and a communist plant. Biden should simply go forward with his promise. Let the Republican reaction expose them as the racist misogynists they are.
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